Lieber Studies Making and Shaping LOAC Volume – Between War and the Text: The Pedagogical Life of IHL

Editors’ note: This post is based on the author’s chapter in Making and Shaping the Law of Armed Conflict (Sandesh Sivakumaran and Christian R. Burne eds. 2024), the tenth volume of the Lieber Studies Series published with Oxford University Press.

When international lawyers and scholars think about how international humanitarian law (IHL) works in the world, we tend to juxtapose implementation “on the ground” with the rules “in the book.” Yet a further site lies between war and the text. This is the pedagogical realm, a domain in which IHL rules are taught, learned, and brought into question in teaching and training spaces. While a deeper appreciation of pedagogy stands to enrich our understanding of the everyday life—or lives—of IHL, this dimension is foregrounded in IHL-related inquiries all too rarely.

This post, which is based on a chapter in the recently-published Making and Shaping the Law of Armed Conflict, articulates a new way of thinking about IHL pedagogy.

IHL Teaching and Training: The Status Quo

As a first observation, the problem is not so much that IHL teaching and training have been completely neglected. Important contributions can be found here, here and here, and a vibrant community of practice has formed around the Jean Pictet role-play competition over decades. I have found no shortage of interlocutors to engage with on experiential IHL learning, whether this concerns emotions at Pictet or the delivery of classroom-based simulations. A broader body of literature is also emerging on teaching international law, shedding light on the international law classroom as a political space.

All of this bodes well for the future trajectory of IHL pedagogy. But at this juncture something is amiss, both in terms of how we think about teaching and how we connect pedagogical inquiry to other facets of IHL practice. To the extent that classrooms and training spaces do not feature prominently in investigations of how IHL rules circulate globally, our picture of IHL practice remains incomplete. All too often, we teach students and practitioners about IHL as though things are happening with the law somewhere else out there. The first step, then, is to recognize that dissemination is an aspect of IHL practice in its own right.

A New Approach to Pedagogy: IHL From the Middle-Out

Bringing teaching and training to the fore, I propose a conceptual and methodological approach that proceeds from the “middle-out.” The investigation begins in the in-between space of the pedagogical realm, and subsequently travels “down” to the kinetic realm (the most operational domain) and “up” to the intellectual realm (the most normative domain). While the proposed framework might be used to explore any legal rule(s), this contribution engages with the principle of distinction as defined in Article 48 of Additional Protocol I.

The Pedagogical Realm: Civil-Military Trainings

In terms of instructional spaces, the pedagogical realm comprises classroom teaching and practitioner-oriented trainings. Focusing on the latter, I conducted empirical research at civil-military trainings in Sweden, Germany, and Italy, specifically those that prepare soldiers and peacekeepers to participate in comprehensive or integrated missions (see also here). In these settings, combatants are encouraged to learn about and get close to civilians. Such overt engagement with the civilian-combatant contact point makes these types of missions, and the trainings associated with them, fascinating sites of study for the principle of distinction. While not legal trainings per se, IHL is in the picture here as well. These trainings familiarize participants with foundational IHL rules and their operational application.

As participants in the pedagogical realm make sense of what they are learning, core IHL concepts are held up to the light, contested and, in some cases, confused. A simple example of a struggle over distinction comes from a training at SWEDINT, the Swedish Armed Forces International Centre. The official line at the training is that, under IHL, “You’re either a combatant or you’re not.” One trainee, however, puzzles over the lack of a unified civilian category in zones of deployment: “Not all civilians are civilians. There are different kinds.” Variations of these competing, and perhaps incompatible, views circulate freely at the training. This contestation reminds us that IHL dissemination is neither passive nor unidirectional. Such conflicts reveal something important about the everyday life of IHL, namely that practitioners might be speaking past one another when they invoke “distinction.” I will circle back to trainings shortly, expanding on the rationale for engaging with the pedagogical realm.

The Kinetic Realm: The Central African Republic

Next, the analysis moves down to the kinetic realm. This is a more operational site of (re)action in which IHL rules are found in motion, typically in the conduct of hostilities. The kinetic realm sheds light on the way in which IHL is enacted day-to-day, as official policies and normative debates come into contact with the mundaneness of daily decision-making.

This part of the discussion draws on interviews and ethnographic observations I conducted in the Central African Republic (CAR) (and see here). What is perhaps most striking from the research findings is the fact that the principle of distinction is routinely invoked in CAR. This is despite a lack of consensus on whether an armed conflict exists, such that IHL applies. The focus presently is on what it means to say that a particular actor is “civilian” in CAR, and who is perceived to fit into the civilian category.

At the time of field research in 2019, protection within CAR’s internally displaced persons (IDP) sites was premised upon an individual’s ascribed civilian status. As UN peacekeepers and other international actors made daily decisions about who is in and who is out, entry to the sites served as a sort of civilian classification mechanism and a tacit application of IHL’s principle of distinction. When I asked a staff member of an international non-governmental organization how they would discern whether someone is a civilian or a combatant in CAR, they offered, “You figure it out in the moment that they begin to act violently, take some kind of action.” This notion that there is a moment of truth, in which status is revealed, sounds not unlike direct participation in hostilities, though this humanitarian made no explicit connection to the IHL concept.

Although we see few obvious references in CAR to the more normative pedagogical and intellectual realms, views on distinction are shaped by each actor’s (lack of) familiarity with international law and the training they have (not) received before deployment. The implication is that while each of the three realms is distinct, they are also overlapping and mutually-informing.

The Intellectual Realm: The ICTY

Now traveling up to the intellectual realm, we find a more normative site in which judges, lawyers, and policy makers engage with legal texts, theorizing and adjudicating IHL rules in traditional legal settings. In contrast to the primary research that I conducted in the pedagogical and kinetic realms, my investigation of the intellectual realm relied on historical materials, legal judgments, and secondary sources. The litigation of crimes against humanity cases at the International Criminal Tribunal for the former Yugoslavia (ICTY) offers one example. In the case of Prosecutor v. Dragomir Milošević the Court set high standards for civilian appearance, comportment, and behavior (see also Garbett). Those claiming civilian status not only had to show that qualities of what I call “combatantness”—that is of danger, complicity, and participation in fighting—did not attach to them at the time of an attack. They also had to establish that qualities of “civilianness”—innocence, harmlessness, and non-participation—did. This heavy burden belies the notion that anyone who is not a combatant will be categorized as a civilian (and see Kinsella more generally). A caveat here is that the civilian figure found in international criminal law may not align with the IHL definition. Nonetheless, struggles over distinction at the ICTY tell us something about how civilian identity might be claimed or denied.

The Payoff of Attending to Pedagogy

Returning to the pedagogical realm, I will highlight three reasons to pay attention to (civil-military) trainings. First, civil-military training grounds are venues where overt attempts are made to disseminate international rules and norms and to shape the behavioral ideals of international actors. Ideas from the intellectual realm circulate down to trainings in the form of classroom sessions, which draw on military manuals, institutional policies, best practice guidelines, and international legal instruments. To varying degrees, these training grounds also bring civilians and combatants together in face-to-face interaction, as when humanitarian trainers deliver guest lectures to soldiers at a NATO training.

Second, examining civil-military training spaces enriches and complements the investigation of civil-military interaction in operational contexts. While places such as the Central African Republic might more obviously appear to be sites of everyday life—albeit conflict-affected ones—professional training spaces are also venues where everyday life unfolds. Almost all the participants who attend civil-military training programs are returning from frontline work in the field, on a break between stints, or preparing for a new mission. At their most useful, the programs establish a temporary space where these international actors can take stock of and make sense of their time in the field. Trainees bring their knowledge and experiences with them from the operational context, and their unique individual experiences also shape their engagement with the lessons. There is some natural overlap with the kinetic realm here, as trainees’ firsthand accounts of deployment offer granular, thick descriptions of the operational context.

Third, rather than measuring how well the training programs mimic the “real” world, the artificial aspects of the training are valuable in their own right, particularly as they showcase facets of IHL rules that are often hidden from view. Simulation exercises, for example, afford an opportunity to observe complex patterns of interaction as if in slow motion. Trainees can literally pause the action as a role-play exercise unfolds, and they might even be granted a chance to replay a scenario again. This kind of iterative process is rarely witnessed in other contexts. It is also through these types of exercises that tensions between competing ideals start to emerge. Commitments that seem possible to uphold simultaneously in the relevant texts, or in the classroom, suddenly rub up against each other, and trainees must negotiate this friction. This aspect of training again edges closer to the operational context.

Conclusion: Three Messy Domains of Practice

While the goings on in the intellectual realm are perhaps the most recognizably legal, the pluralist and practice-based approach proposed here positions the actors in the three realms on the same plane. This invites us to think of a plethora of actors as “law-makers” in the broadest sense of the word: the trainee soldier voicing doubts about a bright line distinction in Sweden; the United Nations peacekeeper permitting entry to an IDP site in CAR; and the lawyer who furnishes evidence of a victim’s clothing to establish civilian status at the ICTY. Even as they differ in normative content, all three realms presented here can be viewed as (equally messy) domains of practice in which IHL’s meaning is routinely made and shaped.

***

Dr Rebecca Sutton is the author of The Humanitarian Civilian. She is based at the University of Glasgow, where she is a Senior Lecturer in International Law and Co-Investigator of the Beyond Compliance Consortium.

Photo credit: U.S. Army, Sgt. Christian Aquino